spring 28, will resist the tendency to open the valve 20 sufficiently to prevent the engine at high speed from drawing an excess amount of air into the explosive mixture through the valve opening 14. It will thus be seen that by the employment of the springs 26 and 28, and their coacting parts, a wide range of adjustment of the pressure against the valve 20 is obtained, and that the arm 29 may be adjusted upon the cam 30 to provide the required pressure for the desired high speed, and the arm 31 is adjusted in respect to the cam 32 to produce the required pressure for the desired low speed."

It will thus be seen that the only difference consists in Parkin's adjustment cam 29, which adjusts low-tension spring 28, and arm 29, which adjusts high-tension spring 26. These arms do adjust the springs separately and independently, and such independent adjustment is the only element in combination which differentiates Parkin's device from Packard's. The case, therefore, narrows down to the question whether this difference constitutes invention. We are satisfied it does not. As we have already seen, when the engine is run at low speed Packard, by the use of the forward end of his wedge, adjusted his low tension spring independently by pushing the inclined plane of the spring so as to force the spring top against the stem ahead, and thus increase tension. In the same way, by withdrawing the wedge, he lowered tension. By use of similar mechanical means, to wit, the inclined surface of a cam, Parkin lessened or increased the tension of his low-tension spring, while his engine was running at low speed, as will be seen by the extract quoted above. It is manifest, therefore, that no invention was involved in the slight mechanical change incident to this change, or in installing a similar cam and arm to increase or lessen the tension of the high-tension spring. Whatever advantage accrued from the change, we are of opinion that it did not involve invention and the claims in issue, 1, 2, 3, 4, and 5, are invalid. Such being the case, it follows that patent No. 1,082,762 which was an improvement based and dependent on the first patent, and which simply consisted in controlling the adjustment from the operator's seat, is equally lacking in invention.

The decree below is therefore reversed, and the cause will be remanded, with instructions to dismiss the bill.

On Petition for Reargument.

PER CURIAM. We have carefully re-examined this case, and are satisfied the court thoroughly grasped the pertinent and controlling facts, and that the decision was right. We are further of opinion no different conclusion would have been reached, had the alleged newly discovered evidence been before us.

The petition for reargument, as well as the petition for leave to apply to the District Court for leave to take further testimony, are therefore denied.

(231 Fed. 985)

AUTOMATIC RECORDING SAFE CO. v. BURNS CO.

(Circuit Court of Appeals, Second Circuit. February 15, 1916. On Rehearing, March 31, 1916.) No. 210.

1. PATENTS 328-VALIDITY AND INFRINGEMENT SAVINGS BANK.

The Fisher patent, No. 793,779, for a portable savings bank, discloses patentable novelty and invention, and is valid. Claims 1, 5, 6, 7, and 8 also held infringed, and claims 2, 3, and 4 not infringed.

2. PATENTS 170-CONSTRUCTION OF CLAIMS.

A construction which would make two verbally different claims in a patent identical is not to be followed, when there is nothing in the prior art which constrains to any such construction.

[Ed. Note. For other cases, see Patents, Cent. Dig. § 245; Dec. Dig. 170.]

Appeal from the District Court of the United States for the Southern District of New York.

Suit in equity by the Automatic Recording Safe Company against the Burns Company. From the decree (224 Fed. 513), complainant appeals. Modified and affirmed.

This cause comes here upon appeal from a decree of the District Court, Southern District of New York. Several patents were involved, but the only questions argued before us are concerned with the patent to Charles Fisher, No. 793,779, issued July 4, 1905, for a savings bank. The District Court found validity in all the claims of this patent, and that claims 6, 7, and 8 were infringed. Complainant has appealed from so much of the decree as holds that claims 1 to 5, inclusive, are not infringed. Defendant has not appealed. The opinion of Judge Sanborn will be found in 224 Fed. 513.

Dyrenforth, Lee, Chritton & Wiles, of Chicago, Ill. (John H. Lee and P. C. Dyrenforth, both of Chicago, Ill., and Hillary C. Messimer, of New York City, of counsel), for appellant.

Before LACOMBE, COXE, and ROGERS, Circuit Judges.

LACOMBE, Circuit Judge. The patents all relate to what are known as portable savings banks. Such a bank consists of a case to hold the coins which are to be placed in it, and an outer case to be slipped over the coin container. The two cases are locked together and the coins slipped in through slits in the outer case. When the bank is full, the cases may be unlocked and the coins removed. Originally the coin case was a single compartment, in which coins of various denominations were mingled together. Thereafter the coin container was provided with a series' of tubes or compartments, so arranged that coins of one denomination are separated from those of another denomination. With banks thus constructed the container had to be turned upside down in order to remove the coins from their

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several containers; the result was that they would frequently become commingled when discharged and had to be sorted before counting.

Fag 3

This patent, 793,779, undertook to remedy that defect, so that, when the outer case was removed, the coins in the several compartments could be readily counted. The devices to accomplish this were held to involve patentable novelty, and we see no reason to dissent from that conclusion. The following drawing will sufficiently indicate the arrangement of the coin containers. When the outer case or cover is slipped over the coin case its interior combines with the flanges A1, A2, A3, etc., to form separate compartments for coins of different denominations.

It is apparent that, when the outer cover is removed, the coins may be counted, and the separate piles be separately removed, either by drawing each pile out, or by lifting it up. Defendant's device, or rather its coin-containing part, is shown below:

The five claims which complainant contends are infringed as well as Nos. 6, 7, and 8, read as follows:

"1. In a portable savings bank, a core comprising a plurality of rigid vertical flanges spaced apart to form compartments to receive coins, the distance between the flanges of each compartment

GORE being greater than the diameter of the

coins to be received by such compartment, the adjacent flanges being united at corresponding ends by walls adapted to partially surround the coins.

"2. In a portable savings bank, a core comprising a base, a plurality of rigid radially projecting flanges spaced apart to form compartments to receive coins, the distance between the outer edges of the radial flanges at each side of each compartment being greater than the diameter of the coins to be received by such compartment.

"3. In a portable savings bank, a core comprising a horizontal base, a plurality of rigid vertical radially projecting flanges spaced different distances apart to form compartments to receive coins of different denominations, the distance between the outer edges of the radial flanges at each side of each compartment being greater than the diameter of the coins to be received by such compartment.

"4. In a portable savings bank, a core comprising a circular horizontal base and a plurality of rigid vertical radially projecting flanges spaced different distances apart to form compartments to receive coins of different denominations, the inner edges of adjacent flanges being united by curved walls conforming to the peripheries of the coins, and the outer edges of adjacent flanges being spaced apart a distance greater than the diameters of the coins to be received by the compartment between such flanges.

"5. In a savings bank, the combination with a base, of a plurality of rigid vertical flanges supported above the base and spaced apart to form compartments for the coins, the distance between the flanges of each compartment being greater than the diameter of the coins to be received by such compartment, a cover comprising a surrounding side wall and top wall united thereto, said cover adapted to inclose the base and the flanges thereon, and means for detachably securing said cover to the base."

The patent being a meritorious one, infringement should not be avoided merely by modifying a Chinese copy by so curving the flanges. which separate the piles of coins that the distance between their outer edges is less than the diameter of the coin-unless such limitation of the claim clearly appears. Such limitation does appear in claims 2, 3, and 4, which expressly provide that the "distance between the outer edges of the radial flanges" shall be greater than the diameter of the coin. But in claims 1 and 5 the limitation is different; there are a plurality of "radial vertical flanges," "spaced apart to form compartments to receive coins," concededly defendant has these. If the definition of the element stopped there the claim would cover coin receptacles in which the coins might enter but would not lie flat-standing on edge with part of the coin projecting beyond the flanges. But the patentee contemplated having the coins lie flat; therefore he provided. that "the distance between the flanges of each compartment should be greater than the diameter of the coins to be received by such compartment." This qualification would cover a compartment in which so much was cut away that the stack of coins could be pulled out through the opening between the flanges, and also a compartment in which the cut away portion (or opening between the flanges) would not allow this to be done and therefore the stack of coins would have to be lifted up.

[2] It seems to us entirely clear that claim 5 has no words which can be construed to restrict the distance between the outer edges of the flanges to less than the diameter of the coins. Certainly in common speech the phrases "between the flanges" and "between the outer edges of the flanges" do not mean the same thing. And since the first phrase is used in some claims and the second phrase in other claims it would seem that the patentee appreciated the distinction. To give. both phrases the same meaning would make two verbally different claims identical, which is a construction not to be followed when there is nothing in the prior art which constrains to any such construction. Claim 1 concludes with the words "the adjacent flanges being united at corresponding ends by walls adapted to partially surround the coins." The rear ends of two adjacent flanges are "corresponding"; so are their front ends. But this concluding phrase cannot possibly refer to the front ends, because, if they were united, the coins would be wholly, not partially, surrounded, and could not be removed at all without dumping.

We are satisfied that claims 1 and 5 are infringed, and to that extent the decree of the District Court is modified, with costs to appellant. In all other respects the decree is affirmed.

On Rehearing.

PER CURIAM. The opinion makes perfectly clear what was and what was not decided by this court and a rehearing as to these questions is denied. Regarding the other claims referred to in the petition. as to which the defendant has not appeared, we see no reason why a pro forma judgment of reversal should not be entered.

(231 Fed. 988)

E. E. JOHNSON CO. v. GRINNELL WASHING MACH, CO. (Circuit Court of Appeals, Seventh Circuit. January 4, 1916. Rehearing Denied March 29, 1916.)

No. 2285.

1. PATENTS 328-VALIDITY-GEARING FOR WASHING MACHINE.

The Phillips patent, No. 950,402, for a gearing device especially adapted to the operation by power of washing machines and wringers, by means of which the washing parts of the wringer may, when desired, be operated at the same time by the same power shaft, held void as merely an aggregation of old elements.

2. PATENTS ~26(1)—“INVENTION"-COMBINATION OF OLD ELEMENTS.

It is not "invention" tc combine old devices into a new machine or manufacture, without producing any new mode of operation.

[Ed. Note. For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. 26(1).

For other definitions, see Words and Phrases, First and Second Series, Invention.]

3. PATENTS 26(1)-INVENTION-COMBINATION OR AGGREGATION.

To constitute a patentable combination, it is essential that there should be some joint operation performed by its elements producing a result due to their joint and co-operating action.

[Ed. Note.-For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. 26(1).]

Appeal from the District Court of the United States for the Northern Division of the Southern District of Illinois; J. Otis Humphrey, Judge.

Suit in equity by the Grinnell Washing Machine Company against the E. E. Johnson Company. Decree for complainant, and defendant appeals. Reversed.

The District Court found claims 5, 6, 7, and 8 of patent No. 950,402, granted February 22, 1910, to W. F. Phillips for a gearing device especially adapted to the operation by power of washing machines and wringers to be valid and infringed by appellant. In the proceedings, claim 6 was conceded to best set out the invention, and will be herein taken as typical of the subject-matter of this suit. It reads as follows, viz.:

"A gearing device of the class described comprising a support, a power shaft mounted on the support, means for imparting a continuous rotary motion to the power shaft, an upright shaft 45 mounted in the support, a driving device for the upright shaft operatively connected with the power shaft and capable of imparting an alternating rotary motion to the upright shaft, a horizontal shaft 39, a driving mechanism for the said shaft 39 connected with the power shaft and capable of imparting a rotary motion to the shaft 39, and a controlling means applied to the driving device for the shaft 39, for reversing the

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